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JEFFREY BECKER ANDREA KLEIN Plaintiffs, V. DANE COUNTY 210 Martin Luther

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JEFFREY BECKER ANDREA KLEIN Plaintiffs, V. DANE COUNTY 210 Martin Luther STATE OF WISCONSIN CIRCUIT COURT DANE COUNTY BRANCH __ JEFFREY BECKER ANDREA KLEIN Plaintiffs, Declaratory Judgment v. Case Code: 30701 Case No. 21-CV- DANE COUNTY 210 Martin Luther King Jr. Blvd., Room 426 Madison, WI 53703 JANEL HEINRICH, in her official capacity as Public Health Officer and Director of Public Health of Madison & Dane County, 210 Martin Luther King Jr. Blvd., Room 507 Madison, Wisconsin 53703 PUBLIC HEALTH OF MADISON & DANE COUNTY 210 Martin Luther King Jr. Blvd., Room 507 Madison, Wisconsin 53703 Defendants. COMPLAINT Plaintiffs Jeffrey Becker and Andrea Klein, by their undersigned attorneys at the Wisconsin Institute for Law & Liberty, hereby allege as follows: INTRODUCTION 1. The Dane County Board is the body vested with local legislative authority in Dane County, yet, through a certain ordinance, it has transferred its legislative power to the local health officer for as long as she deems necessary to prevent the spread of COVID-19, without any duration or oversight by the county board, and she has used that authority since May to rule all aspects of life in Dane County. This transfer of power violates the non-delegation doctrine—the principle that legislative bodies may not cede their policy-making role to unelected and unaccountable officials without sufficient constraints—as well as various state statutes and constitutional provisions. Plaintiffs ask this Court to declare this ordinance illegal and to enjoin enforcement of any orders issued in reliance on it. 2. This case is not about what restrictions are appropriate during the ongoing COVID pandemic, which is admittedly serious. It is about who decides and how. Plaintiffs do not object to and do not challenge many of the restrictions in the current health order. But Plaintiffs believe that some of the restrictions are unreasonable and unnecessary, and they would lobby their elected representatives for reasonable changes were it not for the unlawful delegation. Because all of these decisions are being made by a single, unelected and unaccountable official, however, Plaintiffs have no other option but to file this lawsuit to restore the proper balance of power. PARTIES 3. Plaintiff Jeffrey Becker is a taxpayer and resident of Dane County, Wisconsin. Plaintiff Becker and his children have been directly impacted by the restrictions in the Dane County Health Department’s ongoing COVID-related orders, especially the sports-related restrictions. 4. Plaintiff Andrea Klein is a taxpayer and resident of Dane County, residing at Wisconsin. Plaintiff Klein and her children have been directly impacted by the restrictions in the Dane County Health Department’s ongoing COVID-related orders, especially the sports-related restrictions. - 2 - 5. Defendant Dane County is a county of the State of Wisconsin, established pursuant to Wis. Stat. §§ 2.01, 59.01. Dane County maintains and enforces the ordinance challenged herein. Dane County Ordinance § 46.40; see Wis. Stat. § 59.02. Dane County’s principal office is located at 210 Martin Luther King Jr. Blvd., Room 426, in the City of Madison, Wisconsin. 6. Defendant Janel Heinrich is the Public Health Officer and Director of Public Health of Madison & Dane County, and is named in her official capacity. Defendant Heinrich maintains her principal office at 210 Martin Luther King Jr. Blvd., Room 507, in the City of Madison, Wisconsin. Defendant Heinrich has issued all of the Dane County Health Department’s COVID- related health orders, including the current order, Emergency Order #12. Defendant Heinrich has spent taxpayer funds to develop, publicize, and enforce these orders. 7. Defendant Public Health of Madison & Dane County (“Health Department”) is a city-county health department serving the City of Madison and the rest of Dane County. Defendant Public Health of Madison & Dane County maintains its principal office at 210 Martin Luther King Jr. Blvd., Room 507, in the City of Madison, Wisconsin. Defendant Public Health of Madison & Dane County is the entity responsible for administering Defendant Heinrich’s COVID-related health orders, including the current order, Emergency Order #12. Defendant Public Health of Madison & Dane County has spent taxpayer funds to help develop and implement these orders. JURISDICTION AND VENUE 8. This is an action for declaratory and injunctive relief under Wis. Stat. §§ 806.04 and 813.01. 9. Venue in this Court is proper pursuant to Wis. Stat § 801.50(2). - 3 - STATEMENT OF FACTS 10. In March 2020, in response to the then-emerging COVID-19 pandemic, Governor Tony Evers declared a state of emergency and issued an order, pursuant to his emergency powers under Wis. Stat. § 323.12, shutting down much of ordinary life throughout Wisconsin for 60 days. Wisconsin Legislature v. Palm, 2020 WI 42, ¶ 2, 391 Wis. 2d 497, 942 N.W.2d 900. 11. When the emergency declaration was about to expire without extension by the Wisconsin Legislature, the Secretary of the Department of Health Services (DHS) issued a new, equivalent order, this time pursuant to Wis. Stat. § 252.02. Id. ¶¶ 5–8. 12. The Wisconsin Legislature challenged the order on the ground that it met the definition of a “rule” and therefore should have been promulgated through the rulemaking procedures in Chapter 227, allowing legislative oversight, and the Wisconsin Supreme Court agreed, invalidating and enjoining the order. Palm, 2020 WI 42, ¶¶ 15, 58–59. 13. In addition to holding that the order met the definition of a “rule,” the Supreme Court also explained that Wis. Stat. § 252.02(6) (allowing the DHS secretary to “implement all emergency measures necessary to control communicable diseases”) and Wis. Stat. § 252.25 (making any “departmental order” criminally enforceable) together would violate the non- delegation doctrine if they were interpreted to allow the DHS secretary both to create new, prohibited conduct via order and to enforce those prohibitions through criminal penalties. Palm, 2020 WI 42, ¶¶ 31–42. The Court avoided the non-delegation problem by holding that, to be enforceable, general health orders purporting to regulate an array of normal activities during a pandemic must go through the rulemaking procedures of Chapter 227, thereby giving the Legislature oversight. Id. ¶ 3. - 4 - 14. After the Supreme Court’s decision, Governor Evers did not pursue a new emergency rule. See Riley Vetterkind, Evers administration won’t pursue new COVID-19 restrictions amid impasse with GOP, Wisconsin State Journal (May 19, 2020).1 15. In the wake of Palm, many local health departments considered whether to adopt their own local orders pursuant to the analogous, and seemingly broad, authority in Wis. Stat. § 252.03 to “do what is reasonable and necessary for the prevention and suppression of disease.” 16. But the Wisconsin statutes do not provide any enforcement mechanism for a broad local health order that purports to regulate or prohibit normal activities. 17. A recent analysis by the Wisconsin Counties Association noted that “[n]either the statutes nor the administrative code provide for a detailed enforcement mechanism of a local health officer’s general order.” See Wisconsin Counties Association, Guidance in Implementing Regulations Surrounding Communicable Disease 27–40 (August 2020).2 18. In light of this, counties and cities have taken one of three approaches since Palm. 19. First, many local governments simply rescinded their orders in favor of encouraging voluntary compliance with DHS and CDC recommendations and have not since adopted any new orders. See Mitchell Schmidt, Some Wisconsin counties rescind local stay-at- home orders, Dane County order to stay in place, Wisconsin State Journal (May 16, 2020).3 1 https://madison.com/wsj/news/local/govt-and-politics/evers-administration-wont-pursue-new- covid-19-restrictions-amid-impasse-with-gop/article_86186768-a9a4-5ff2-947c-db0caeaf9767.html 2 Available at https://www.co.dodge.wi.gov/home/showpublisheddocument?id=39868 3 https://madison.com/wsj/news/local/govt-and-politics/some-wisconsin-counties-rescind-local- stay-at-home-orders-dane-county-order-to-stay-in/article_3b4d1e92-4f00-5348-ab15-72ba8fc572da.html - 5 - 20. In other jurisdictions, the local governing body (county board, city council, etc.) adopted COVID-related restrictions in ordinances via the normal local legislative process. See, e.g., Alison Dirr, Milwaukee Common Council approves requiring masks in public spaces, Milwaukee Journal Sentinel (July 13, 2020).4 21. A handful of jurisdictions, like Dane County, preferred to allow the local health officer to continue to make these critical policy decisions on her own, and, to address the lack of any enforcement mechanism in state law, proposed ordinances to expand their local health officer’s powers. See generally MacIver Institute, UPDATED: County Governments Seeking Great Powers For Public Health Bureaucrats, Despite Public Opposition (Aug. 4, 2020).5 4 https://www.jsonline.com/story/news/local/milwaukee/2020/07/13/milwaukee-common- council-approves-mask-requirement/5363137002/ 5 https://www.maciverinstitute.com/2020/08/county-governments-seeking-great-powers-for- public-health-bureaucrats-despite-wi-supreme-court-safer-at-home-decision/ - 6 - 22. These proposed ordinances faced significant backlash, and many were tabled or scrapped entirely, see generally id., including in Chippewa,6 Dodge,7 Eau Claire,8 Jefferson,9 Oconto,10 and St. Croix11 counties. 23. Only three counties that Plaintiffs are aware of (Dane, Door,12 and Pierce13) have adopted ordinances preemptively making any order of the local health officer enforceable without limits or oversight by the county board. 24. And only Dane County’s local health officer has issued orders in reliance on such an ordinance, that Plaintiffs are aware of. 6 Carla Rogner, Chippewa County votes down health ordinance as dozens protest, WEAU 13 News (Sept. 17, 2020), https://www.weau.com/2020/09/17/chippewa-county-votes-down-health-ordinance-as- dozens-protest/ 7 See Ken Thomas, Dodge County weighs COVID ordinance: Approval not likely before December, Daily Citizen (Oct.
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